In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3666
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARK HURN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 05-CR-0085—John C. Shabaz, Judge.
____________
ARGUED JUNE 8, 2007—DECIDED AUGUST 3, 2007
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Before POSNER, FLAUM, and MANION, Circuit Judges.
FLAUM, Circuit Judge. After a two day trial, a jury
acquitted Mark Hurn of possession of cocaine base with
intent to distribute, but found him guilty of possession of
powder cocaine with intent to distribute. At sentencing,
the district court found that Hurn distributed cocaine
base, notwithstanding the jury’s acquittal on that count,
and calculated a Guidelines range of 188 to 235 months
in prison. Though Hurn argued that his I.Q. of between
fifty and sixty-four merited a much lower sentence, the
district court sentenced him to 210 months’ imprisonment.
Hurn appeals his conviction and sentence. For the follow-
ing reasons, we affirm.
2 No. 06-3666
I. Background
On June 2, 2005, officers from the Dane County Narcot-
ics and Gangs Task Force executed a search warrant at
Hurn’s home in Madison, Wisconsin. The officers found
over 450 grams of cocaine base, approximately fifty grams
of powder cocaine, ecstasy pills, and over $38,000 in cash
throughout the home. Hurn admitted that he was a drug
dealer and that the drugs and money belonged to him. He
also showed the officers where some of the drugs and
money were located.
On June 22, 2005, a grand jury returned a two-count
indictment. Count One charged Hurn with possessing fifty
or more grams of cocaine base with intent to distribute and
Count Two charged him with possessing cocaine with
intent to distribute, both counts in violation of 21 U.S.C.
§ 841(a).
Before trial, the government advised Hurn that it
planned to use a 1995 drug conviction to prove his intent
and lack of mistake.1 Hurn argued that the admission of
his prior conviction would violate Federal Rule of Evid-
ence 404(b), but the district court ruled that the evidence
was admissible.
At trial, Hurn maintained that the drugs were not his
and that he falsely confessed to police because he was
afraid that the real owners of the drugs would harm him.
His live-in girlfriend, Sabrina Mays, testified that she
allowed a number of other individuals to live in the home
from time to time and that they were responsible for
the drugs found there. The government argued that
Hurn’s defense was not credible, pointing to his post-
arrest admissions and lack of legitimate employment
during the relevant time period. The district court admit-
1
Hurn was sentenced to five years in prison for this conviction.
No. 06-3666 3
ted Hurn’s prior conviction over his continued objection,
but instructed the jury that the conviction should be
considered only as evidence of Hurn’s intent. Ultimately,
the jury acquitted Hurn on Count One (cocaine base), but
convicted him on Count Two (powder cocaine).
The probation office prepared a presentence report
(PSR), and concluded that, despite the verdict, a prepon-
derance of the evidence demonstrated that Hurn possessed
with intent to distribute both cocaine powder and cocaine
base. As a result, it advised the district court to con-
sider Hurn’s possession of cocaine base when determin-
ing Hurn’s relevant conduct under Federal Sentencing
Guideline § 1B1.3. The PSR recommended a base offense
level of 34, a criminal history category of III, and a Guide-
lines range of 188 to 235 months. Had the PSR not in-
cluded Hurn’s possession of cocaine base in its relevant
conduct calculation, Hurn’s recommended Guidelines
range would have been 27-33 months.
At sentencing, Hurn objected to the consideration of
acquitted conduct and argued that his low intellectual
capacity merited a sentence at the low end of the 27-33
month Guidelines range. The court rejected Hurn’s plea for
leniency, noting that he made the same sentencing argu-
ment after a previous drug conviction:
The present offense is remarkably similar to the 199[5]
crack distribution case that you had before Judge
Fielder. It’s a rerun where he admonished you and
addressed the issue of diminished capacity. Even back
then the court took note that you had been making a
living as a drug dealer[,] and despite your cognitive
disabilities you successfully amassed large sums of
money. We do not entirely discount your intellectual
impairments as a factor. It does mitigate the crime.
But nonetheless, you were in there with your eyes
wide open[,] and it is now time for sentencing.
4 No. 06-3666
Sent. Trans. at 33-34. The district court also concluded
that the government proved by “clear and convincing
evidence” that Hurn personally possessed cocaine base
with intent to distribute. It then sentenced him to 210
months in prison.
II. Analysis
A. Rule 404(b) Evidence
Hurn’s first argument concerns the district court’s
admission of his 1995 conviction. Though the district court
ruled that the conviction was relevant to prove intent,
Hurn claims that the conviction only demonstrated his
propensity to deal drugs, a prohibited purpose under Rule
404(b). We review the district court’s admission of evidence
under Rule 404(b) for an abuse of discretion. See United
States v. Senffner, 280 F.3d 755, 762 (7th Cir. 2002). We
give the district court great deference in such matters,
and we will not substitute our judgment for that of the
district court. Id.
Rule 404(b) prohibits the government from using prior
bad acts “to prove the character of a person in order to
show action in conformity therewith,” but allows the
admission of such evidence to establish “motive, opportu-
nity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” This Court evaluates the
admissibility of prior bad acts under a four part test. The
evidence must be relevant to an issue other than the
defendant’s propensity to commit the crime charged, the
other act must be similar enough and close enough in time
to be relevant, there must be sufficient evidence that the
defendant committed the similar act, and the probative
value of the evidence must not be substantially outweighed
by the danger of unfair prejudice. See United States v.
Puckett, 405 F.3d 589, 596 (7th Cir. 2005).
No. 06-3666 5
This Court has recognized several situations in which a
prior drug conviction is relevant to prove the defendant’s
intent in a subsequent prosecution for possession of drugs
with intent to distribute. The most obvious situation is
the one “in which the defendant, while admitting posses-
sion of the substance, denies the intent to distribute it.”
United States v. Jones, 455 F.3d 800, 808 (7th Cir. 2006).
A prior conviction is also relevant when the defendant
concedes being in the vicinity of drug activity but argues
that he was a “clueless bystander.” See United States v.
Chavis, 429 F.3d 662, 668 (7th Cir. 2005); United States v.
Macedo, 406 F.3d 778, 793 (7th Cir. 2005). In Chavis, the
defendant was caught buying cocaine base from a drug
dealer, but claimed that he “was simply in the wrong place
at the wrong time.” We held that the defendant’s prior
drug conviction was admissible to prove intent. Chavis,
429 F.3d at 668. In Macedo, the defendant was arrested
at O’Hare airport after he met two Mexican nationals
who had attempted to smuggle methamphetamine into
the country. At trial, he claimed that he had nothing to do
with the drug conspiracy and was at the airport “by
happenstance.” We held that a nine-year-old drug convic-
tion was admissible to prove intent. Macedo, 406 F.3d
at 793.
In this case, Hurn conceded in his closing argument that
he knew there were cash and drugs in the home, but
maintained that he did not know how much cash or what
kind of drugs were there because none of it was his. He
maintained that he stayed in the home only occasionally
and that he falsely confessed to owning the drugs because
he was afraid of retaliation by the real drug dealers. Just
like the defendants in Chavis and Macedo, Hurn claimed
that he was an innocent bystander who was in the
wrong place at the wrong time. Accordingly, the prior
conviction was relevant on the issue of Hurn’s intent.
6 No. 06-3666
Hurn also maintains that the 1995 conviction was too
remote to be relevant and that its unfair prejudice sub-
stantially outweighed its probative value. We have held
that a district court does not abuse its discretion by
admitting thirteen-year-old evidence of prior bad acts
where the prior conduct is very similar to the conduct
charged. See United States v. Wimberly, 60 F.3d 281, 285
(7th Cir. 1995); see also Macedo, 406 F.3d at 793 (holding
that the admission of Rule 404(b) evidence is proper in a
drug case where nine years elapse between the prior
conduct and the conduct charged). Cf. United States v.
Garcia, 291 F.3d 127, 138-39 (2d Cir. 2002) (holding that
a district court errs by admitting a twelve-year-old drug
conviction to prove intent in a subsequent drug prosecu-
tion). Here, Hurn’s previous conviction involved conduct
that was very similar to the conduct charged. In both
instances, Hurn was caught distributing large quantities
of cocaine while in possession of significant amounts of
cash. Consequently, his ten-year-old conviction was not
too remote to be used at trial.
Additionally, the prior conviction’s probative value was
not substantially outweighed by unfair prejudice. Impor-
tantly, the district court instructed the jury to consider
the prior conviction only as evidence of intent, “and we
must presume that the jurors followed this order.” Chavis,
429 F.3d 668-69. Moreover, the conviction was highly
probative because it went directly to Hurn’s intent to
distribute cocaine, which he “made an issue in the case by
denying any connection to the drugs.” Id. at 669.
B. Relevant Conduct
Hurn next argues that the district court violated his
Sixth Amendment and due process rights by using acquit-
ted conduct to enhance his sentence. The Supreme Court,
in United States v. Watts, 519 U.S. 148, 154 (1997), held
No. 06-3666 7
that when calculating a defendant’s relevant conduct
under section 1B1.3 of the Federal Sentencing Guidelines,
“a sentencing court may consider conduct of which a
defendant has been acquitted.” The Court noted that
“acquittal on criminal charges does not prove that the
defendant is innocent; it merely proves the existence of a
reasonable doubt as to his guilt.” Id. at 156 (internal
quotation omitted). Hurn, citing several district court
decisions, contends that United States v. Booker, 543 U.S.
220 (2005), overruled Watts. This Court has held, however,
that Watts survived Booker, and we decline to reconsider
our position. See United States v. Horne, 474 F.3d 1004,
1006 (7th Cir. 2007); United States v. Price, 418 F.3d 771,
788 & n.7 (7th Cir. 2005).
Watts acknowledged that there is some disagreement
among circuit courts about whether a sentence, like this
one, that is based almost entirely on acquitted conduct,
violates due process when the district court applies a
preponderance of the evidence standard rather than
requiring clear and convincing evidence. Compare, e.g.,
United States v. Hopper, 177 F.3d 824, 833 (9th Cir. 1999)
(requiring clear and convincing proof where the use of
acquitted conduct results in a seven-level adjustment to
the defendant’s Guidelines range), with United States v.
Ward, 190 F.3d 483, 492 (6th Cir. 1999) (holding that a
district court may find acquitted conduct by a preponder-
ance of the evidence). Nevertheless, the disagreement—
which Watts did not resolve—is not relevant in this case,
because the district court applied the higher standard of
proof when determining that Hurn committed the con-
duct in question. Moreover, the evidence at trial and
sentencing amply supported the district court’s finding.
Putting aside the numerous admissions that Hurn made
to police immediately after his arrest as well as the
physical evidence uncovered during the search, Hurn
acknowledged that the district court could conclude that
8 No. 06-3666
he allowed others to store cocaine in his home.2 An individ-
ual can be held criminally responsible for distributing
drugs if he allows others to store drugs in his home for
that purpose. See United States v. Jenkins, 78 F.3d 1283,
1287 (8th Cir. 1996); United States v. Smith, 26 F.3d 739,
748 (7th Cir. 1994).
Because clear and convincing evidence supported the
district court’s finding that Hurn possessed cocaine base
with intent to distribute, the district court’s use of acquit-
ted conduct did not violate Hurn’s Sixth Amendment or
due process rights.
C. The § 3553(a) Factors and Reasonableness
Lastly, Hurn argues that his sentence should be vacated
for two reasons that the Supreme Court recently discussed
in Rita v. United States, 127 S. Ct. 2456, 2462 (2007).
He argues that the district court did not adequately
consider the sentencing factors outlined in 18 U.S.C.
§ 3553(a) and that his sentence is substantively unrea-
sonable because it gives insufficient weight to his dimin-
ished mental capacity. We address each argument in turn.
1. Consideration of § 3553(a) Factors
In Rita, the Supreme Court discussed what and how
much a sentencing judge must state on the record to
demonstrate that it considered the § 3553(a) factors. 127
2
In a letter written to the district court prior to sentencing,
Hurn’s attorney wrote, “At the most, Mark was a dupe who
allowed his ‘friends’ to use his and [Mays]’s home to store the
materials.” Hurn’s attorney made this concession even though
the district court instructed the jury to convict Hurn if he
knowingly aided or abetted another’s commission of the crime.
No. 06-3666 9
S. Ct. at 2468-69. Ultimately, the Court concluded that
the judge need not say a great deal. In Rita, the defendant
was convicted of perjury and requested a sentence below
the applicable Guidelines range. He argued that because
he was a former government criminal justice employee,
other inmates were likely to retaliate against him. He
also maintained that his poor physical health and former
military service weighed in favor of leniency. The govern-
ment responded that a former criminal justice employee
should have known better than to interfere with a federal
investigation. The sentencing judge asked the parties
questions about each sentencing factor, and after hearing
the parties’ arguments, decided that the defendant’s
Guidelines range provided an appropriate sentence that
would protect the public from the defendant’s crime. He
then sentenced the defendant to the bottom of the Guide-
lines range.
Though the sentencing judge did not mention the defen-
dant’s reasons for leniency, the Supreme Court held that
his statement demonstrated that “he ha[d] considered the
parties’ arguments and ha[d] a reasoned basis for exer-
cising his own legal decisionmaking authority.” Id. at
2468. The Court said that the judge listened to the defen-
dant’s arguments and “simply found these circumstances
insufficient to warrant a sentence lower than the Guide-
lines range.” Id. at 2469. It further explained that al-
though the judge could have elaborated that “he had
heard and considered the evidence and argument,” that
the Sentencing Guidelines reflected a proper sentence, and
that the defendant’s “personal circumstances here were
simply not different enough to warrant a different sen-
tence,” the context of the judge’s statements made his
reasoning clear and allowed the Court to review that
reasoning on appeal. Id.
The district court in this case said substantially more
than the judge in Rita. After listening to Hurn’s two
10 No. 06-3666
arguments for leniency—his limited role in the offense and
his diminished mental capacity—the district court pro-
vided reasons for rejecting them. As a factual matter, the
court concluded that Hurn was not a minor player in the
offense, see Sent. Tr. at 33. Addressing Hurn’s second
argument, the district court read into the record the
sentencing transcript from Hurn’s 1995 drug conviction. In
that case, the state court judge discussed the very same
issue of limited mental capacity:
Mr. Hurn, I realize you have had some inherent
difficulties in your life that are beyond your control, by
that I mean the fact that you are developmentally
disabled. That came through very clearly in the
presentence investigation report . . . . I’m satisfied that
you are of sufficient mental ability to know that
dealing in drugs is wrong and that people who do so
are going to be punished, oftentimes punished harshly,
because this is something that society is simply not
going to tolerate. Regardless of your degree of
educability, I am further satisfied that that [sic] you
are aware that someone holding 50 or approximately
50 pieces of crack cocaine and having on their persons
three separate wads of money which totaled up to
$3700 is someone who is involved in the drug trade . .
. . And I’m satisfied that you were in there with your
eyes open, that you knew the potential penalties you
faced.
Sent. Tr. at 32-33. The district court stated that this
case was “remarkably similar” to the 1995 drug convic-
tion and that despite the state court judge’s prior admoni-
tions, Hurn had returned to a life of dealing drugs. Id. at
33. In other words, the court discounted Hurn’s limited
mental capacity argument because he was fully aware
that dealing drugs could lead to serious consequences,
particularly after his stint in prison.
No. 06-3666 11
The Court then recited the § 3553(a) factors, noting that
an important consideration would be how to fashion a
sentence that “would somehow deter [Hurn] from [his]
continued criminal activity.” Id. It also repeated the
importance of Hurn’s criminal history, noted his history
of alcohol and drug abuse, and pointed out that Hurn’s
drug quantities were at the top of the drug quantity range.
In short, the district court addressed Hurn’s arguments
in favor of leniency, discussed the § 3553(a) factors that
it found most important, and ultimately settled on a
sentence in the middle of the Guidelines range. As a
result, it sufficiently articulated the reasons for Hurn’s
sentence.
2. Reasonableness
Hurn also argues that the length of his sentence is
unreasonable because the district court gave insufficient
weight to his limited mental capacity. A Guidelines
sentence is presumptively reasonable, see Rita, 127 S. Ct.
at 2462, “and we review the district court’s decision
deferentially.” United States v. Otero, No. 05-3132, 2007
WL 2050403, at *6 (7th Cir. July 19, 2007). Hurn has not
convinced us that his sentence is an exception to the
general rule that a Guidelines sentence is reasonable. The
district court reasonably concluded that, despite Hurn’s
low I.Q., he knew that he was engaging in serious criminal
activity and that—given the prior conviction for the
same offense—a Guidelines range sentence was neces-
sary to deter him from further criminal behavior.
III. Conclusion
For the foregoing reasons, we AFFIRM Hurn’s conviction
and sentence.
12 No. 06-3666
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-3-07